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Why the Supreme Court Should Not Take Bob McDonnell’s Case

Update 1/15/16: The Court announced late today that it will hear McDonnell’s case, only on the “official acts” question, not on the jury selection issue. It will be very interesting to see what happens – watch this space!

For those following the Bob McDonnell case, all eyes were on the Supreme Court this past Monday. McDonnell’s petition for certiorari was considered at the Court’s conference last week, which led many to expect the Court to announce on Monday whether it would take the case. But the Court took no action, which suggests the Justices want additional time to consider accepting McDonnell’s appeal.

They shouldn’t do it.

The former Virginia Governor and his wife Maureen were convicted in September 2014 on multiple counts of federal corruption. The convictions were based on their relationship with businessman Jonnie Williams, who gave them more than $170,000 in secret gifts including a Rolex watch, designer gowns, vacations and golf outings, and $120,000 in no-paperwork, no-interest “loans.” In exchange, the government charged, the McDonnells agreed to use the power of the Governor’s office to promote Williams’ dietary supplement, Anatabloc.

A unanimous panel of the Fourth Circuit Court of Appeals affirmed McDonnell’s convictions, and the full court declined to re-hear the case en banc. But in a somewhat surprising move, the Supreme Court allowed McDonnell to remain free on bond while it considers whether to hear his appeal.

In his petition to the Supreme Court, McDonnell claims his conviction is unprecedented; that this is the “first time in our history that a public official has been convicted of corruption despite never agreeing to put a thumb on the scales of any government decision. ” His conviction, he says, turns all commonplace political interactions into potential federal felonies.

McDonnell has an impressive array of allies at the Supreme Court. Nearly a dozen amicus briefs were filed on his behalf, all urging the Court to take the case. Those supporting McDonnell include various criminal law and public policy organizations, a group of current and former Virginia legislators, a group of former Virginia Attorneys General, a bipartisan group of former state and federal officials, and a number of Virginia law professors. All agree that upholding McDonnell’s conviction would place every elected official at the mercy of federal prosecutors.

(McDonnell also claims that the jury selection process in his trial was flawed, but that’s a secondary issue. Most of his argument focuses on the legal validity of his corruption convictions, as do almost all the amicus briefs.)

I’ve been a little surprised to see how many current and former public officials have claimed that McDonnell’s conviction threatens to undermine the very foundations of our political system. As an example of quid pro quo corruption the McDonnell case is really not that remarkable, and it poses no threat to ordinary political activities. The apocalyptic arguments to the contrary by McDonnell and his supporters largely rest on mischaracterizations of the law, the facts, or both.

There’s really no reason for the Supreme Court to take this case. Here’s why:

1. McDonnell did not need to perform “official acts” — Since before he was even indicted, McDonnell has argued he could be convicted of federal corruption only if he performed “official acts” as defined in the federal bribery statute, 18 U.S.C. § 201, in exchange for the gifts. Section 201(a)(3) defines “official act” as “any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official . . . .” McDonnell and his supporters have spent a great deal of time arguing that, whatever McDonnell did for Williams, it did not amount to “official acts” within this definition.

As I’ve argued here and here, the problem with this claim is that McDonnell was not charged with violating 18 U.S.C. § 201. He could not have been, because Section 201 applies only to federal public officials. McDonnell was convicted under two different statutes that cover bribery by state and local officials: Hobbs Act extortion under color of official right and honest services wire fraud. The statutory definitions in Section 201 simply do not apply to these other federal crimes.

In his petition to the Supreme Court, McDonnell has backed away somewhat from his earlier claims that the precise language of Section 201 controls. He even appears to criticize the trial court for adopting the 201 language – even though it was the very standard he argued for throughout his trial. McDonnell now claims that the statutes under which he was convicted require “official action,” an apparently undefined term that “draws content” from Section 201.

But as explained below, the key to any bribery case is whether there was a corrupt deal to exercise government power or influence in exchange for the bribe payments, not the precise nature of any actions actually taken. All of the arguments about whether McDonnell’s actions fit within a precise statutory definition are largely beside the point. Despite all the noise about “official acts,” there is no legal issue here concerning the proper definition of that term that would justify Supreme Court review.

2. In fact, McDonnell did not need to perform any acts at all . . . — McDonnell and his supporters claim his conviction is flawed because Williams did not actually get the university studies of Anatabloc and other benefits that he was seeking. His lawyers argue that neither Williams nor his company “received a dime of state money” as a result of the bribes. But as the government has pointed out, this is not a defense.

It’s well settled that fulfillment of the quid pro quo is not required for a bribery conviction. The public official only needs to make the corrupt deal; he does not need to follow through. If he backs out or is thwarted somehow in his efforts to fulfill his end of the bargain, the crime has still been committed. The failure of a bribery scheme does not make it lawful.

For example, suppose a public official accepts $100,000 from a developer in exchange for agreeing to use his influence to ensure the developer gets a contract to renovate a large public building. The next day, before the official has taken any steps to fulfill the agreement, the building burns to the ground, making the contract impossible. The crime of bribery has still been committed; the crime is the corrupt agreement to sell the powers of the office, even if the official never actually does anything.

The corrupt agreement, of course, does not have to be in writing or even be expressly stated. The agreement may be inferred based on the actions of the parties; otherwise, as the Supreme Court has noted, it would be far too easy to deny corruption by simply acting through “knowing winks and nods.”

Williams testified at trial and was very clear about what he expected from the McDonnells in exchange for the gifts. McDonnell also testified and denied any such agreement or understanding, of course, but that simply set up a classic witness credibility issue. Who to believe in such a case is a fact-bound, jury determination – not a legal question for the Supreme Court to resolve.

It was more than reasonable for the jury to accept the government’s argument that McDonnell knew that Williams – a man he didn’t even know before he ran for office – was not simply showering him with gifts out of kindness or admiration. McDonnell knew what Williams wanted in return, and the jury found he accepted the gifts with that understanding. That’s all the law requires.

3. . . . but in any event, McDonnell DID use the power of his office in an attempt to benefit Williams – The evidence at trial showed that the McDonnells did in fact do a number of things for Williams in exchange for his largesse. The governor asked certain officials to meet with Williams to discuss his product and plans. He suggested to state officials that Virginia universities might do research studies of Anatabloc and that perhaps it should be promoted by the Virginia state employees health plan. Perhaps most significantly, the McDonnells held a “product launch” event for Anatabloc at the Governor’s mansion, which was planned by state employees and attended by the university researchers who would decide whether to undertake the studies that Williams desired.

McDonnell and his supporters have consistently argued that these were routine political courtesies, not weighty or significant enough to be “official acts,” “official action,” or otherwise to support a bribery conviction. But these arguments largely miss the point because, as noted above, the government was not required to prove that McDonnell took any action at all, only that he entered into the corrupt agreement with Williams.

Again, the key to bribery is the existence of a corrupt agreement, not the precise nature of anything subsequently done by the public official. McDonnell’s actions were not the sine qua non for determining whether bribery took place. They did, however, provide evidence that the corrupt agreement existed and that McDonnell was taking steps to carry it out. That was more than sufficient to support the jury’s verdict.

Suppose one of the university researchers had followed through on McDonnell’s suggestion and initiated the research study that Williams wanted. The defense then would be hard pressed to argue that Williams had received no benefit or that McDonnell had not “placed his finger on the scale” of a government decision. Yet the actions actually taken by McDonnell himself would have been exactly the same.

The evidence at trial suggested the main reason McDonnell’s efforts on Williams’ behalf did not succeed was that the governor’s staff did not follow through on his requests, in part because they did not trust Williams or believe in his product. It is not a defense for the governor that his subordinates had the good sense to resist his efforts to fulfill his end of his corrupt bargain.

4. McDonnell’s conduct was not legal under Virginia law — McDonnell and his supporters have claimed his prosecution is unjustified and presents federalism issues because what he did was perfectly legal under Virginia law. They note that Virginia’s notoriously lax ethics laws allowed politicians to accept undisclosed gifts. It’s not appropriate, they argue, for the federal government to prosecute a state official for conduct that would be legal under state law.

To bolster this argument, McDonnell and his supporters seize on a line from the trial judge’s jury instructions: “there has been no suggestion in this case that Mr. McDonnell violated Virginia law.” But the unremarkable statement that Virginia law is not an issue in the federal case and that the jury should not consider it is not the same as an affirmative finding that McDonnell did not violate Virginia law. On the contrary; based on the jury’s verdict it is clear that he did.

Virginia state law defines bribery as a public official agreeing to accept a pecuniary benefit in exchange for being influenced in a “decision, opinion, recommendation, vote or other exercise of discretion as a public servant.” VA Code §18.2-447(2). This broad application to “recommendations” and “exercises of discretion” certainly covers much of McDonnell’s conduct on behalf of Williams.

It’s true that Virginia law did allow public officials to accept undisclosed gifts, but it did not allow them to do so as part of an agreement to exercise their official powers in exchange. That is quid pro quo bribery prohibited by every state. McDonnell could have legally accepted Williams’ gifts if there were no strings attached — but that’s not what the jury found happened in this case.

5. McDonnell’s conviction poses no threat to ordinary political interactions — The scariest bogeyman raised by McDonnell and his supporters (many of them politicians, of course) is that his conviction criminalizes routine political actions and relationships. They claim that if McDonnell’s conviction stands, no politician could answer a phone call from a supporter or arrange a meeting with staff for a donor without fear of prosecution.

This claim that McDonnell’s conviction criminalizes “politics as usual” again misapprehends the nature of his case. With our system of privately financed campaigns, politicians do need to raise money, and they will inevitably take actions favored by their supporters. Similarly, individuals have a right to support politicians financially and to express their views to them about policies and actions they would like those politicians to pursue.

What politicians and their supporters cannot do, however, is enter into agreements where the politician agrees to take a particular action in direct exchange for a particular gift or contribution. That is the quid pro quo that defines the line between routine political interactions and corruption.

The distinction between taking actions generally favored by one’s political supporters and acting pursuant to a direct quid pro quo agreement may seem like a fine line, and at times it is. But that is the stuff of which political corruption cases are made. Politicians in a corruption case routinely claim there was no quid pro quo; the ongoing case involving New Jersey Senator Bob Menendez involves the same defense. Whether the corrupt agreement existed is a jury question that will turn on the facts of the particular case.

When trying to determine whether a particular relationship is corrupt or simply politics as usual, the entire relationship needs to be examined. McDonnell and his supporters have consistently tried to cloud this issue by referring to Williams as a “supporter” or a “donor.” They suggest McDonnell’s conviction means any politician may be prosecuted for any favor done for someone who attended a fundraiser or contributed to their campaign.

But Williams was not just a “donor” or “supporter.” The gifts from Williams were not campaign or PAC contributions – they were secret gifts and undocumented loans. Individual campaign contributions, which take place within a legal and regulated system, have almost a presumption of legitimacy. They are subject to legal limits and are publicly disclosed, so all may see who is supporting a particular politician and where he or she may have potential conflicts of interest. And the funds are used for documented political purposes, not to line the candidate’s own pockets.

Gifts of Rolex watches, designer gowns, payment for wedding caterers, and sweetheart “loans” take place outside of this system. The gifts from Williams were secret, and both sides wanted it kept that way. There was no way for the public to know about Williams’ support of McDonnell, and no legal limits to that support. Gifts like these, unlike routine campaign contributions, are indicative of potential corruption. Referring to Williams as simply a “donor” or “supporter” obscures this critical distinction and the corrupt nature of his interactions with the McDonnells.

Although it’s true that a bribery case may be based on campaign contributions, it is very rare. Any such case would be scrutinized extremely closely to ensure that routine political support is not being criminalized and that the jury did not infer a quid pro quo simply because a politician took action that benefited a supporter. If that scrutiny revealed there was in fact an express quid pro quo in exchange for a campaign contribution, that would still be bribery – but that is not new, and was not something created by the McDonnell case.

Secret gifts enter the equation on a far different footing from legitimate campaign contributions. In other words, contrary to McDonnell’s claims, all quids are not created equal when evaluating whether a corrupt relationship existed. Extrapolating from McDonnell’s conviction to argue that all routine political interactions are now at risk is simply politicians claiming that the sky is falling.

McDonnell’s conviction breaks no new ground and raises no novel questions of federal law. It’s a case of simple quid pro quo corruption, where the jury heard both sides and reached a unanimous verdict that no federal judge has seen any reason to disturb. Despite the parade of horribles presented by McDonnell and his supporters, there is no reason for the Supreme Court to get involved.